McIntosh v. Charleston County Sheriff's Department

Filing 65

ORDER RULING ON 61 REPORT AND RECOMMENDATIONS that the complaint is DISMISSED with prejudice for failure to prosecute pursuant to Rule 41(b). Signed by Honorable Richard M Gergel on 8/1/2011. (sshe, )

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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF SOUTH CAROLIN;).:,:,::. ('!
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CHARLESTON DIVISION
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ZOlI JUL 32 P"I: 30

Patrick R. McIntosh,
Plaintiff,
vs.
Charleston County Sheriff's Department,
Defendant.

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ORDER
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This matter is before the court in Plaintiff's pro se civil action. In accordance ith 2~
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U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(e), DSC, this matter was referred to United"')
States Magistrate Judge Bristow Marchant for pre-trial proceedings and a Report and
Recommendation. On July 8, 2011, the Magistrate Judge issued a Report and Recommendation
recommending that this action be dismissed with prejudice if Plaintiff failed to respond or object
to the Report and Recommendation.

Plaintiff has failed to reply or object to the Report and

Recommendation. As explained herein, this Court has reviewed the record for any errors of law
and agrees with the Magistrate Judge's Report and adopts it as the Order of this Court.
Discussion

The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and responsibility for making a final determination remains with this
Court. Mathews v. Weber, 423 U.S. 261, 270-71, 96 S.Ct. 549,46 L.Ed.2d 483 (1976). This
Court is charged with making a de novo determination of those portions of the Report and
Recommendation to which specific objection is made, and this Court may "accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate." 28

U.S.C. § 636(b)(1). This Court may also "receive further evidence or recommit the matter to the
magistrate with instructions." Id. In the absence of specific objections to the Report and
Recommendation, this Court is not required to give any explanation for adopting the
recommendation. Camby v. Davis, 718 F.2d 198 (4th Cir. 1983).
After reviewing the record of this matter for any errors of law, the applicable law,
and the Report and Recommendation of the Magistrate Judge, the Court agrees with the
conclusions of the Magistrate Judge. Here, Plaintiff has failed to cooperate in the discovery
process of this lawsuit. Defendant has scheduled Plaintiff s deposition on multiple occasions.
Nevertheless, Plaintiff has failed to appear for any of the scheduled depositions. Moreover,
Plaintiff has failed to correspond with Defendant for more than three months (since March 15,
2011) despite Defense counsel sending Plaintiff deposition notices and serving him with a
motion to dismiss. Further, Plaintiff has failed to prosecute his case in accordance with the
instructions set forth by the Magistrate Judge in scheduling and other orders, despite being
specifically advised that his failure to comply with those orders and discovery would result in a
recommendation of dismissal for failure to prosecute.
Despite Plaintiffs failure to cooperate with the discovery process and court orders, the
Magistrate Judge, in light of Plaintiff s pro se status, presented the option of imposing a
monetary penalty on Plaintiff as a less drastic option than an outright dismissal. Through the
payment of fees and costs, Plaintiff could demonstrate to the Court his willingness to continue
with the prosecution of this case and comply with Court rules as well as allow the Defendant to
recover losses it has incurred as a result of Plaintiffs conduct. However, Plaintiff has not
replied or objected to the Magistrate Judge's recommendation that this action be dismissed for
failure to prosecute if Plaintiff failed to respond. (Dkt. No. 61). It appears that the Plaintiff no

longer wishes to pursue this action. As a result, this Court adopts the Magistrate Judge's Report
and Recommendation as the order of this Court and incorporates it herein.
Conclusion

Accordingly, the Complaint is DISMISSED with prejudice for failure to prosecute
pursuant to Rule 41(b) of the Federal Rules of Civil Procedure and the factors outlined in
Chandler Leasing Corp. v. Lopez, 669 F .2d 919, 920 (4th Cir.1982).
AND IT IS SO ORDERED.

Rirlig

United States District Court Judge
August_'_, 20 II
Charleston, South Carolina